India being a secular country has a population comprising of people from almost all major religions. Whether it is Hindus, Muslims, Christians, Parsis or any sub religions of Hinduism like Jains, Buddhists, Sikhs, Arya Samajis or Brahmo Samajis, all religions are given equal status in India by preamble of the Constitution itself. Although, “rule of law” prevails in India, but there are certain circumstances where the principle of ‘equality before law’ has to be compromised with. Especially in cases where religious sentiments are in question, every religion has to be allowed to follow its own tradition. These include matters like Marriage, Divorce, Succession, and Adoption. In India there are separate enactments governing personal laws of different religions. Let us take a classic example of marriage laws. Hindus in India are guided by Hindu Marriage Act, 1955; Muslims have no codified laws of marriage; Christian marriages are governed by the Christian Marriage Act, 1872; Parsi Marriages by Parsi Marriage and Divorce Act, 1936; Sikhs called Anand by The Anand Marriage Act, 1909 and The Special Marriage Act deals with inter religion marriages.
Likewise, there are different laws of succession among different religions. The Hindu Succession Act, The Indian Succession Act, and the Muslim personal law of succession are some laws governing succession in India. The Muslim Law on Succession has not been codified and is followed as per the sayings of the holy ‘Kuran’
The whole Hindu society is divided into followers of two schools being Mitakshara School and Dayabhaga School. The Dayabhaga School is followed in West Bengal and states of north east and the rest of India follows the Mitakshara School. There is a concept of HUF or Hindu Undivided Family in Mitakshara School as per which, (in the old Hindu Succession Act before 2005) the eldest male member of the family used to be the Karta and all other male members the coparceners and every coparcener was to have a share in the property of the HUF by birth. However the amending act of 2005 has given daughters of the family also equal shares. For cases other than HUF, under the Hindu Succession Act, the males and females have been separately classified and the rules of succession are different among them. Section 8 of the Act talks about Hindu male dying intestate (without making a Will). It gives a hierarchy as per which the property shall devolve. It states that the property shall first devolve among the heirs of class 1 in Schedule 1 (i.e. Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son). In case there is no relative from class 1, then to those of class 2 (i.e. Father; Son’s daughter’s son; son’s daughter’s daughter; brother; sister; Daughter’s son’s son; daughter’s son’s daughter; daughter’s daughter’s son; daughter’s daughter’s daughter; Brother’s son; sister’s son; brother’s daughter; sister’s daughter; Father’s father; father’s mother; Father’s widow; brother’s widow; Father’s brother; father’s sister; Mother’s father; mother’s mother; Mother’s brother; mother’s sister) and in absence of any relative of Class 1 or 2 first to Agnates and then to Cognates. The term Agnate has been defined Under Section 2(1)(a) as “one person is said to be an agnate of another if the two are related by blood or adoption wholly through males” and the term Cognate U/s 2(1)(c) as “one person is said to be cognate of another if the two are related by blood or adoption but not wholly through males”. Further Section 12 specifies the order of succession among the agnates and cognates.
Section 15 of the Act talks of devolution of property of Hindu Female dying intestate. The property of a Hindu female dying intestate shall firstly, devolve upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; secondly, upon the heirs of the husband; thirdly, upon the mother and father; fourthly, upon the heirs of the father and lastly, upon the heirs of the mother.
Section 20 makes a very important mention of a child who was in the womb at the time of death of an intestate and who is subsequently born alive has the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate. But the Cat clearly mentions that the situations whereby a person is disqualified from inheriting. A murderer and a convert’s descendants are among those and in certain cases widows remarrying can also get disqualified. However, there is even a clear mention of the fact that no disease or defect can disqualify a person from inheriting.
Another legislation regulating succession in India is The Indian Succession Act, 1925.
This Act is older than the Hindu Succession Act and was the only succession act of that time. In its object clause this act states that its purpose is to consolidate all the Indian Laws relating to Succession.
Chapter 2 of the Act deals with intestate succession and states that it shall not apply to Parsis. Under Section 32 it states that the property of an intestate shall devolve upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter. The chapter further speaks of different situations and how the property shall devolve in those circumstances. The situations thus contemplated include situations like when the intestate has left child or children only; has left no child but grand-child or grand-children; or where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred and such other circumstances. Chapter 3 frames separate rules for Parsis.
This act also standardizes the concept of testamentary succession i.e succession through Wills or Codicils. U/s 2(h) it defines "will" as the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death and U/s 2(b) "codicil" as an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will. Section 59 states that every person of sound mind, not being a minor may dispose of his property by will. To explain this statement four explanations have been given U/s 59 viz.
Explanation 1. A married woman may dispose by will of any property which she could alienate by her own act during her life.
Explanation 2. Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.
Explanation 3. A person who is ordinarily insane may make a will during interval in which he is of sound mind.
Explanation 4. No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
Chapter 6 of the statute deals with construction of a Will. Section 79 states that it is not necessary that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom. All the Wills are subject to grant of Probate. Probate is a proceeding undertaken in a Court of Law, to prove the genuineness of a Will.
Now let me share something about Muslim Succession.
Muslims are basically categorized into Shias and Sunnis. In India there are more Sunni Muslims. There is no codified law to deal with succession amongst Muslims. They follow the Holy Kuran to devolve the property of a person dying intestate. The devolution is on three grades viz. the Sharers, the Residuaries and the Distant Kindereds. As per the table of shares the share in the property is first given to the sharers. If anything remains then that is devolved upon the Residuaries and if there are no sharers or Residuaries then the distant Kindereds come into picture and get their share. As per the Muslim Law, the property should be fully devolved and nothing should remain left over. Only when the total property is devolved, the succession completes.
Thus conclusively, it can be stated that the laws of succession in India are different for different religions and this is perhaps the apt way. Due to the operation of the policy of secularity it is not possible to have an uniform law on succession and thus it shouldn’t even be tried as it may hurt the religious sentiments of people and may lead them to adopt unfair means instead of going on the path framed by the law.
Likewise, there are different laws of succession among different religions. The Hindu Succession Act, The Indian Succession Act, and the Muslim personal law of succession are some laws governing succession in India. The Muslim Law on Succession has not been codified and is followed as per the sayings of the holy ‘Kuran’
The whole Hindu society is divided into followers of two schools being Mitakshara School and Dayabhaga School. The Dayabhaga School is followed in West Bengal and states of north east and the rest of India follows the Mitakshara School. There is a concept of HUF or Hindu Undivided Family in Mitakshara School as per which, (in the old Hindu Succession Act before 2005) the eldest male member of the family used to be the Karta and all other male members the coparceners and every coparcener was to have a share in the property of the HUF by birth. However the amending act of 2005 has given daughters of the family also equal shares. For cases other than HUF, under the Hindu Succession Act, the males and females have been separately classified and the rules of succession are different among them. Section 8 of the Act talks about Hindu male dying intestate (without making a Will). It gives a hierarchy as per which the property shall devolve. It states that the property shall first devolve among the heirs of class 1 in Schedule 1 (i.e. Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son). In case there is no relative from class 1, then to those of class 2 (i.e. Father; Son’s daughter’s son; son’s daughter’s daughter; brother; sister; Daughter’s son’s son; daughter’s son’s daughter; daughter’s daughter’s son; daughter’s daughter’s daughter; Brother’s son; sister’s son; brother’s daughter; sister’s daughter; Father’s father; father’s mother; Father’s widow; brother’s widow; Father’s brother; father’s sister; Mother’s father; mother’s mother; Mother’s brother; mother’s sister) and in absence of any relative of Class 1 or 2 first to Agnates and then to Cognates. The term Agnate has been defined Under Section 2(1)(a) as “one person is said to be an agnate of another if the two are related by blood or adoption wholly through males” and the term Cognate U/s 2(1)(c) as “one person is said to be cognate of another if the two are related by blood or adoption but not wholly through males”. Further Section 12 specifies the order of succession among the agnates and cognates.
Section 15 of the Act talks of devolution of property of Hindu Female dying intestate. The property of a Hindu female dying intestate shall firstly, devolve upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; secondly, upon the heirs of the husband; thirdly, upon the mother and father; fourthly, upon the heirs of the father and lastly, upon the heirs of the mother.
Section 20 makes a very important mention of a child who was in the womb at the time of death of an intestate and who is subsequently born alive has the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate. But the Cat clearly mentions that the situations whereby a person is disqualified from inheriting. A murderer and a convert’s descendants are among those and in certain cases widows remarrying can also get disqualified. However, there is even a clear mention of the fact that no disease or defect can disqualify a person from inheriting.
Another legislation regulating succession in India is The Indian Succession Act, 1925.
This Act is older than the Hindu Succession Act and was the only succession act of that time. In its object clause this act states that its purpose is to consolidate all the Indian Laws relating to Succession.
Chapter 2 of the Act deals with intestate succession and states that it shall not apply to Parsis. Under Section 32 it states that the property of an intestate shall devolve upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this Chapter. The chapter further speaks of different situations and how the property shall devolve in those circumstances. The situations thus contemplated include situations like when the intestate has left child or children only; has left no child but grand-child or grand-children; or where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred and such other circumstances. Chapter 3 frames separate rules for Parsis.
This act also standardizes the concept of testamentary succession i.e succession through Wills or Codicils. U/s 2(h) it defines "will" as the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death and U/s 2(b) "codicil" as an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will. Section 59 states that every person of sound mind, not being a minor may dispose of his property by will. To explain this statement four explanations have been given U/s 59 viz.
Explanation 1. A married woman may dispose by will of any property which she could alienate by her own act during her life.
Explanation 2. Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.
Explanation 3. A person who is ordinarily insane may make a will during interval in which he is of sound mind.
Explanation 4. No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
Chapter 6 of the statute deals with construction of a Will. Section 79 states that it is not necessary that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom. All the Wills are subject to grant of Probate. Probate is a proceeding undertaken in a Court of Law, to prove the genuineness of a Will.
Now let me share something about Muslim Succession.
Muslims are basically categorized into Shias and Sunnis. In India there are more Sunni Muslims. There is no codified law to deal with succession amongst Muslims. They follow the Holy Kuran to devolve the property of a person dying intestate. The devolution is on three grades viz. the Sharers, the Residuaries and the Distant Kindereds. As per the table of shares the share in the property is first given to the sharers. If anything remains then that is devolved upon the Residuaries and if there are no sharers or Residuaries then the distant Kindereds come into picture and get their share. As per the Muslim Law, the property should be fully devolved and nothing should remain left over. Only when the total property is devolved, the succession completes.
Thus conclusively, it can be stated that the laws of succession in India are different for different religions and this is perhaps the apt way. Due to the operation of the policy of secularity it is not possible to have an uniform law on succession and thus it shouldn’t even be tried as it may hurt the religious sentiments of people and may lead them to adopt unfair means instead of going on the path framed by the law.
-Krishanu Ray
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